This blog takes an interest in issues associated with Freedom of Information (FOI) and privacy legislation in Australia. It also includes comment about open transparent and accountable government and related issues generally drawing on developments in Australia and overseas. Information contained on this site is general in nature and does not constitute legal
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Monday, March 31, 2008

It's well and good that Special Minister of State John Faulkner has announced plans to introduce legislation to fix some aspects of the loopholes in laws relating to political donations and public funding, but it's hardly a big deal that disclosures will be required every six months rather than once a year. The Canberra Times reports Senator Faulkner:

"hailed the doubled frequency of the reporting of donations, saying they would likely be made public only eight weeks after each six-month period. Previous the 12 month reporting period had been extended up to 19 months. "This is very, very different and very, very significant," he said".

Different it may be, but why shouldn't we expect something even closer to real time reporting and public disclosure. There are many examples around the world where more stringent requirements are in place. Here is one example from Ontario Canada:

Reports of contributions in excess of $100 and contributions from a single source that in the aggregate exceed $100 must be reported to the Chief Electoral Officer within 10 business days after the contribution is deposited. The Chief Electoral Officer must publish the information on the web within 10 business days of receiving the report.

So why six months for a report and eight weeks for publication here?

Crikey is right to also ask what's happened to the long promised register of lobbyists.

"Fixing up the accountability of political financing ins't much use if vested interests can walk into Parliament House and lobby MPs in secret".

Sunday, March 30, 2008

What a pity there was also no room at the inn for Andrew Podger, President of the Australian Institute of Public Administration and a distinguished former public servant who has spoken up about the need for greater transparency; Jack Waterford of the Canberra Times, with a long history of involvement in government watching and FOI; Professor Meredith Edwards, of the School of Governance at the University of Canberra and former Deputy Secretary of the Prime Minister and Cabinet; Tony Harris, former NSW Auditor General and Financial Review columnist and Dr. Peter Chen of Monash University one of our leading thinkers about e-democracy and how technology can be used to improve participation in government.

The PM must have taken the entire Government PR team with him to Washington on Friday morning. How else to explain that the list of attendees at the 2020 Summit was announced at 11am that day, but at 5pm there was still no sign of the list on the Government's 2020 website? The only way of knowing who was in was the full list published by the Australian? (The list appeared subsequently).

Then how to explain that almost 850 names were listed alphabetically and by the state from which their nomination came, but no details other than gender were provided, playing right into the hands of those who were looking for the opportunity to sneer? The only recognisable names, and those that led the media reports since, were politicians current and former, journalists, some academics who have national standing and celebrities including a former AFL star?

Good to see Michael McKinnon FOI Editor of Channel 7 and David Solomon the head of the Queensland Review of the FOI Act on the list, but surprised that other FOI experts like Rick Snell and Moira Paterson didn't make it. Paul Chadwick now of the ABC and a former Victorian Privacy Commissioner also has a strong FOI background and was a great choice.

There is a swag of journalists, many well known such as David Marr, Paul Kelly, and yes, Miranda Devine, but few outside Melbourne and journalist circles would figure out that Michael James Harvey of the ACT would seem to be the Melbourne Herald Sun Canberra correspondent convicted last year of contempt of court for refusing to reveal the source of a story.

I see that Andrew Bolt includes in his targets for criticism "Ian McPhee", describing him as a former Liberal Minister who hated John Howard. But surely "Ian McPhee, male, ACT" is the Commonwealth Auditor General? Anyone could make that sort of mistake Andrew.

I've managed to identify all but a few names through the web and am satisfied there are lots of good potential contributors to a discussion about improving the way the Government operates. People like Professor Marian Sawyer, for her work on the Democratic Audit of Australia; Professor Janette Hartz-Karp of Murdoch University, an authority of deliberative democracy; Associate Professor Lyn Carson of the University of Sydney who is behind the Active Democracy website to encourage public participation in decision making; other distinguished academics from media studies, journalism and law faculties; Kristen Hilton of the Homeless Persons Legal Clinic in Melbourne; Olivia Guarna of the Young Workers Legal Service in Adelaide; and Brett Solomon of GetUp

Apart from the complete question marks however, you have to wonder about the inclusion of Senator George Brandis (fresh from 12 years in government); Helen Sham Ho, 5 years after she resigned from the NSW Upper House; the Northern Territory Secretary of the Public Service Union and the head of Unions SA; Erin Adams of NSW presumably the star of the movie "Annie" (or have I done an Andrew Bolt here?); Mauri Ryan of the NT, for whom the only available information is that he is a member of the Mannum Rowing Club(?) ;and Catherine Sampson the Managing Director of Healthy Habits, "Australia's first national sandwich bar brand".

The Government itself should have done a much better job in making us aware of the background of those selected.

I don't know what was behind the thinking that led to the inclusion in the 2020 list of former Premiers Bob Carr and Joan Kirner, but at least they will be busy thinking about the future of the economy and social inclusion respectively and have nothing to do with the governance discussions. What a relief! Bob Carr on open government would be something.

Friday, March 28, 2008

The Atlanta Declaration and Plan of Action for the Advancement of the Right of Access to Information has been published this week, the follow on from the conference organised by the Carter Center in February and attended by invited experts and interested parties including Australia's Rick Snell.

The intention is to make a renewed effort with international organisations and governments around the world to promote access to information as the foundation for citizen participation, good governance, corruption prevention and accountability in accordance with principles set out in the Declaration. Developing and developed countries would all benefit from using the principles as a check list for assessment of their access to information regime.

For example, Australian freedom of information laws, policies and practices would seem to fall short of the standard in a number of areas including:

failure to cover legislative bodies, and to apply to an organisation that receives public funds or benefits or carries out public functions

removal of unnecessary obstacles such as cost

narrowly drawn exemptions all subject to a public interest override

mandatory full disclosure of any secret or confidential document after a reasonable period of time unless exceptional reasons specified at the time of creation

clear penalties and sanctions for non-compliance by public officials

in some jurisdictions at least no information commissioner or specialist ombudsman with power to make binding and enforceable decisions on review

public education and training to empower persons to make full use of the right

companion legislation to compel disclosure of political donations and lobbying activity, and the repeal of contradictory provisions such as those in an official secrets act

NSW as the only jurisdiction that does not review and report on compliance with the law (the requirement to do so was removed in 1991) would also fail on that good practice requirement.

Apart from provoking some introspection about how we do things here, the Declaration should also be of interest to Ausaid given our foreign aid commitment to improved governance in developing countries, and to the Treasury which occupies the Australian seat at the World Bank.

Wednesday, March 26, 2008

All you can say after reading this decision of the NSW Administrative Decisions Tribunal is that in addition to patience, persistence, time, energy, resources and a passable knowledge of the law, any FOI applicant who may be heading towards independent review also needs a calendar and a prompt system to alert them when an agency has failed to make a determination under the Freedom of Information Act. Otherwise they may find the door well and truly shut.

The applicant in this case was told on 19 March 2008, that the Tribunal had no jurisdiction to hear his application for review of a determination for an FOI application dated November 2006. The NSW Police Service had determined the application 97 days after it was received (statutory time frame 21 days).

The applicant sought internal review 9 days later. The Police Service determined that application on 6 June, 53 days later (statutory time frame 14 days).

The applicant lodged a request for external review with the ADT on 17 July, apparently comfortably within the 60 day time frame.

But no, the Tribunal found the application had been received out of time, because the applicant should have known that the Police Service failure to determine the internal review application constituted a deemed refusal. Time had started to run from 28 April when the decision should have been made. Calculating forward, any application to the Tribunal should have been lodged no later than 4 July. There is nothing to suggest that the Police brought all this to the attention of the applicant at the time or any time thereafter.

In line with earlier precedents the Tribunal decided it had no discretion to consider a late application, although a separate decision to this effect in another case is on appeal.

And finally not a word in the Tribunal decision about the tardy processing of the application by the Police Service. Some reports we have seen suggest that delays in processing there are systemic.

As the Premier, by his silence implies, FOI works well in NSW, particularly after all the helpful guidance provided in the Government's FOI manual, and the 9 years of work that went into it.

The Chief Justice of the Western Australian Supreme Court has confirmed the decision of the Acting Information Commissioner that the Salaries and Allowances Tribunal is not "a court or tribunal" for the purposes of the Freedom of Information Act, and found no error of law in the Acting Commissioner's decision to grant access to a report by Mercer consultants on senior public service pay - now some years old.

The Chief Justice concluded (at 73) that a tribunal is "a body which performs judicial or quasi judicial functions which are analogous to those performed by a court" and that the Salaries and Allowances Tribunal,for various reasons, failed the test.

The decision may have some ramifications for the interpretation of what constitutes a tribunal for FOI purposes in other jurisdictions. For example in NSW the Ombudsman has taken a similar view to that expressed in the WA decision, arguing that bodies of essentially investigative or law enforcement nature are not excluded from the Act because they are tribunals.

But the NSW Premier's Department has taken a different view suggesting that a much broader approach to the definition of a tribunal is justified (see 13.3.6 - 13.3.8 FOI Manual 2007). It remains to be seen whether the WA decision will cut much ice in the NSW Administrative Decisions Tribunal if and when the issue crops up again.

Andrew Leigh of Australian National University was right a couple of weeks ago (see our comments) in his observations about the importance of transparency concerning performance of hospitals. He was also right yesterday in another op-ed in the Australian Financial Review in highlighting four core notions about public funding for school education, including that "taxpayers who fund (the) schools have a right to demand that they provide empirical data such as test scores, drop out rates, or parental satisfaction surveys"; and that funding provided should be sufficiently transparent to enable parents to know precisely how much government funding their school receives as a result of their child's enrolment. Our present system isn't up to scratch in either area.

Just on the issue of information about the health system, a report released last week by The Australian Centre for Health Research on Australian health care agreements includes a section on data about public hospitals that says the billions spent by federal and state governments on IT for performance of the health system "has largely been wasted". The report (pages 37-39) says data on comparative performance of public and private hospitals should be collected and published, to ensure government, analysts and the public can make informed judgments about these institutions and the people running them.

"In the short term it will lead to embarrassment for some hospitals, health bureaucracies and Ministers - this is happening now in a more dramatic and unhelpful way without data being available publicly. In the medium to long term, if it results in improved performance, the political embarrassment will diminish".

But in the meantime we have reports of fiddling with the data about emergency waiting times at some public hospitals in NSW. We need to do something about integrity within the system as well as committing to publication of accurate performance information.

Congratulations to Elizabeth Jackson of ABC Radio, (as the ABC tells us - not to be confused with Liz Jackson) the recipient of a scholarship to the Reuters Institute for the Study of Journalism in Oxford, to look at international Freedom of Information developments and investigative journalism.

Elizabeth has worked for the ABC for 16 years, and hosts Correspondents Report on Radio National, as well as being the host and Executive Producer of Saturday AM.

Tuesday, March 25, 2008

Most observers (including me) were surprised at developments last week that revealed it was commonplace for members of parliament to accept sponsored travel from private interests. The hot issue was the revelation that the Prime Minister when Opposition Spokesman on Foreign Affairs had accepted travel paid by Beijing AustChina for a number of trips to China and other destinations such as the US, UK and Sudan. Other frontbenchers now ministers such as the Treasurer and the Minister for Foreign Affairs also took advantage of this generosity.

The Prime Minister's response was that as the Opposition had no funds for such travel, there was nothing untoward in all this and details had been included at the time in his returns provided for the Parliament's register of interests.

It sounds like the media wasn't paying much attention to what was in these returns, and the paid trips only came to light when Crikey.com ran the story a couple of weeks ago.

At present the returns and the register are available for public inspection during business hours at Parliament House Canberra.

This isn't good enough. As the headline on the Canberra Times article mentioned above, this is everybody's business. We shouldn't be dependent on the media alone to scrutinise the interests declared by members of parliament. This sort of stuff should be published on the web as a matter of routine. Just as it is in Scotland where this website includes a link to the current return of interests by each member of the Scottish Parliament. Or as it is in NZ where the latest annual return for all members is on the web. Or as it is in the US Senate where a database of all approved travel paid for by private interests is available for all to see.

We shouldn't have to plan a trip to Canberra to see who has been 'generous' in helping our parliamentarians see the world. It's another initiative that should appeal to any government interested in improved standards of openness and transparency.

I haven't looked but presume we have the same blinkered approach to the publication of the declaration of interests of state and territory MPs.

Monday, March 24, 2008

"Dear Mr. Rudd, Ideas for a Better Australia", edited by Robert Manne is packed full of bright ideas on 19 topics relevant to the 2020 Summit in April, even though Manne and his contributors kicked all this off in the middle of last year. Three contributors address issues associated with good governance.

Harry Evans, the Clerk of the Senate, puts forward some good suggestions about improving the way Parliament operates and former WA Premier Geoff Gallop has some interesting angles on making the Federation work more effectively. Patrick Weller of Griffith University also makes mostly valuable comments about getting the Federal public service back effectively serving the government and the Australian people.

However I'm a bit taken aback by a couple of Weller's observations about freedom of information. The following passage in his letter to the Prime Minister appears on pages 77 and 78, with my comments in parenthesis:

"Remember that even good causes can have some serious unintended consequences for government. Freedom of information is one example. FOI may be one of the better causes of recent years; citizens deserve to know what government knows about them".(This isn't what FOI is primarily about although much use of the Act is by people seeking access to personal information. The Government's own documentation states that "the underlying rationale behind the FOI Act is open and accountable government. Its object is to extend as far as possible the right of the Australian community to access to information in the possession of the Commonwealth").

"Yet Ministers still need to be able to debate alternative strategies with their public servants; they need to be free to explore possible solutions without each one becoming public knowledge".(Yes, ministers and public servants need "thinking space" to weigh issues and options and in most cases this is probably best done, as the Deputy President of the NSW Administrative Decisions Tribunal put it, "without someone looking over their shoulder at every step of the way". It's a different matter however to suggest that various options considered shouldn't become public knowledge after the thinking processes are complete. Content and how best to advance community interests should determine whether documents should be disclosed or not disclosed.)

"If all government papers are readily available to the media, ideas will not be developed in full and ministers will have to rely on oral briefings".(Really? While obligations to create records are a little vague in the Federal Archives Act, the Archives Authority, the Auditor General and the Public Service Commission, all advocate systematic processes to document the activities of a government agency. Here is just one example from the Public Service Commission: "...it is good practice for departments to use written briefings to provide assurance that the issues and options are clearly presented to the Minister....it is also good practice for departments to maintain a record of all briefings of significant issues and any resulting discussions and decisions". The Administrative Decisions Tribunal has recently rejected the view that documents should not be disclosed because of the effect on record keeping.)

"Good policy deserves to be fully developed and widely considered in private and in cabinet, before decisions are finally made".(Yes, and this is reflected in the FOI Act, with the important proviso, that any decision to refuse access must take into account public interest factors for and against disclosure).

"It seems reasonable that papers about the consequences of policies actually adopted be made public, while papers exploring other options remain confidential".(Just why this would be reasonable is a bit hard to fathom. Weller's position seems to suggest we go back to pre FOI days. After all since 1982, the law has been that papers exploring other options will only be exempt from disclosure when the public interest in confidentiality outweighs the public interest in disclosure).

Then there is this on page 84: "Advice to the minister must remain confidential, whether it is policy advice from departmental staff or political advice tendered by ministerial staff. Ministers have to be able to talk over options, to discuss strategies, to consider the political ramifications of proposals, to calculate the levels of support they will get from there colleagues".(This seems to suggest that documents containing advice are best kept confidential until they are publicly released after 30 years. Advice documents that contain sensitive information about aspects of government operations that if disclosed would harm important community interests, should remain confidential until the reasons for sensitivity have passed. But they shouldn't be regarded as confidential just because they contain advice. The best way to ensure high quality advice is to put advisers on notice that their work may be subject to scrutiny).

I expect given Weller's well deserved eminence as a scholar of the way government works, that he is a certainty for the summit. But on this point at least, his wisdom shouldn't go unchallenged.

Those expecting, anticipating or dreading the release of the Australian Law Reform Commission Final Report on Privacy, have a couple of extra months to contemplate or prepare - the Commission's deadline has been extended from the end of March until the end of May.

Friday, March 21, 2008

The Sydney Morning Herald today has published my opinion piece on the Greiner government's grand ambitions in introducing Freedom of Information legislation in NSW 20 years ago - to reduce corruption, strengthen democracy, increase accountability, encourage a more active citizenry, help the public make more informed judgments at election time, and improve government decision making. All very worthy goals, but largely unrealised 20 years later primarily because of the not so benign neglect of the leaders of government who followed Greiner following his departure from office in 1992.

Treasury has a well earned reputation for insisting on the need for confidentiality in the provision of advice, and clinging to exemption claims, where documents have been sought under the Freedom of Information Act, even where advice is years old, and much of any sensitivity appears to have passed.

Those who thought Friday's release presaged a new approach in Treasury however won't be reassured by an opinion piece in today's Australian Financial Review "Accountable when it suits" by Tony Harris. (Sorry, the new AFR free content does not extend to opinion pieces). Harris writes about Treasury response last week to Government documents on the consumer price index forecasts for two publications released in October. Nearly all pages of the 13 relevant documents were blanked out. None of the 23 pages of a minute prepared for the Secretary in September was released. And so on ...........

Treasury said release of some documents would undermine the integrity of its relationship with the Reserve Bank and may effect the candour of future communications; the release of others "could lead to less rigorous advice to the government". Harris points out that the Public Service Act requires officers to provide frank and fearless advice. There are also the Administrative Appeals Tribunal reject these type of arguments in the absence of evidence to support such broad and general assertions, and confirming that disclosure of documents may be in the public interest where this facilitates public debate on matters of public importance.

The Treasury FOI response sounds like more of the same old, same old, to me.

Harris says the media release on the Fair Pay submission shows that Treasury will reveal its advice to the Treasurer when this suits Treasury or the government's convenience. However FOI legislation, and its spirit and intent are meant to establish clearer disclosure requirements that apply in all circumstances.

Perhaps the Special Minister of State and the Treasurer need publicly remind the public service that we have a new government with a different perspective on openness and transparency.

Saturday's editorial in the Sydney Morning Herald opened with the sentence "This has been a poor week for open government" in NSW and went on to outline developments on a number of fronts to prove the point. That's only half of it. There is plenty of evidence of an ongoing culture of secrecy. As the Herald says: "The starting point for policy makers and bureaucrats of any kind is that everything must be kept secret, never mind who or what is damaged by the secrecy".

The editorial continued:

"Unwelcome though the thought is in a mature democracy, Australians are so used to secrecy and comfortable with bullying and subterfuge that many of us seem to have forgotten the virtues of openness and honesty".

I think the Herald is wrong in concluding: "It is a sad reflection on 21st century Australia: we see the gag so often applied that we have learnt to like it".

There is no evidence we have learnt to like the penchant for secrecy but we need to be more vigilant and more outspoken in demanding better of our leaders.

Monday, March 17, 2008

The requirement for the Victorian Police to reveal their dodgy mates was one thing, but a 25 page Federal Government security clearance form that requires disclosure of information about intimate details of private life, apparently to protect ministerial staff from blackmail threats, is something else. According to Minister of State Senator Faulkner, only a few have objected.

The Telegraph says that there has been a dramatic reduction in recorded "serious incidents" in NSW because of a new scheme introduced in August last year that means that principals no longer directly file reports on such matters, simply notify the Department which decides whether they should be recorded.

The Western Australian Salaries and Allowances Tribunal has appealed to the Supreme Court the finding by the Acting Information Commissioner that found it was subject to the Freedom of Information Act.

In his decision the Acting Commissioner decided that the Salaries Tribunal was not a tribunal for the purposes of an exemption for such bodies in the FOI Act - it did not exercise judicial or quasi judicial functions, was not an adjudicative body, and some of its decisions were subject to review and final decision by the government.

Keryn McKinnon, writing in The West Australian describes the Supreme Court case as a must win test case for FOI:

"It is hard to understand how a body which makes decisions about the expenditure of tax payers funds, not to mention the authorisation of taxpayer-funded reports which it does not want to release, can hide behind a veil of secrecy".

Maybe there was a privacy angle after all in the examination of athletes' Medicare records - the Minister for Sport has ordered an immediate review and asked the Federal Privacy Commissioner for input. It might have been a better idea to do this before the program got underway.

Friday, March 14, 2008

"Because of the Privacy Act" gets a workout frequently in all sorts of contexts to explain why something can't be done, sometimes with good reason, sometimes not. There has been a bit of an outbreak in "BOTPA" today:

In South Australia, details of all members of parliament traffic offences cannot be released because of privacy laws, but a Liberal Party member has fessed up to four speeding offences that led to the loss of his license.

The Police Association in Victoria says that a policy requirement that police provide routine disclosure of information about "improper" friends, families and associates to the Police Service, would breach privacy and human rights laws. Hullo?

With Dr. Patel sitting in a cell in Oregon, the Federal Government has halted a review of checks on foreign doctors visas after state health departments challenged the Immigration Department's right to check records held by state medical boards. The NSW Health Minister cites privacy considerations as a stumbling block. Hullo again?

But the Privacy Act isn't a problem for Australian sports doping authorities who have been checking the Medicare prescription records of athletes to see if they have been taking banned substances. Now that's a relief!

No we are not talking about Wollongong or any of the other NSW councils much in the news recently.

The Victorian Ombudsman has released a report on Conflict of interest in local government (1.7MB) with a range of recommendations for improvement in governance. The Ombudsman says that conflict of interest is part of a broader problem of public sector ethics and is an important factor in the weakening of citizens' trust in public institutions.

Lack of transparency is part of the problem, with some decisions often made inappropriately in private. (See page 18-19):

“Removing discussions and decision making from the public arena leads to the promotion of private interests and the corruption of proper administration.

Situations must be avoided where councillors, meeting informally and in a context where there is no requirement to declare any conflict of interest, influence the proper decisions and actions of thecouncil officers”.

There is a similar broad ranging report by the Ombudsman and Macquarie University on conflict of interest in the state public sector.

There are echoes of the issues identified in these reports in other jurisdictions throughout the country. Victoria however may have some special problems given the absence of an anti corruption commission.

Terrific that the Australian Financial Review is at last providing access to some free content.

As a result we can tell you that the Federal Government is on the job looking at ways to tackle welfare fraud, and has left room for smartcard technology. But Human Services Minister Joe Ludwig has made it clear that the former government's access/ID card is off the agenda: "We are not considering reviving the Liberal's billion dollar access card".

A decision handed down by the NSW Court of Appeal this week is the latest in a long line of cases involving an applicant seeking access to documents held by Macquarie University and claimed exempt on legal professional privilege grounds. The Court dismissed the applicant's appeal and awarded costs to the University.

While the NSW Freedom of Information Act enshrines a "general policy of disclosure" of official information, the exemption in Clause 10 "should be construed without any prior inclination to construe it narrowly, nor any inclination to construe it broadly" (para. 46-48). So the law as it stands requires no 'leaning' in favour of disclosure.

The Court also rejected an argument that the words in the exemption "would be privileged from production in legal proceedings" required a decision maker (in this case the Tribunal) to have regard to the standard of evidence required by courts and the procedures courts follow when claims of legal professional privilege are determined (para. 49-56). Parliament could not have intended an agency decision maker to receive evidence on oath, undertake cross examination or other steps involved in court proceedings in deciding a privilege claim. The task was simply to make up his or her own mind on the basis of available information:

"Clause 10 does not change its meaning depending upon whether it is being applied by an officer of the agency, or by the Tribunal. The task of the Tribunal in reviewing a claim of legal professional privilege made by an agency is to make up its own mind, on the basis of such information as it has available to it, about whether the matter contained in a document has the characteristics that would make it privileged...."

The Court also rejected arguments that an error of law had occurred in the way in which the Appeal Panel had considered whether in this case privilege had been lost because advice had been sought for an improper purpose.

Thursday, March 13, 2008

Across the US next week Americans will get to hear a lot about the importance of open government and freedom of information, as Sunshine Week, led by the American Society of Newspaper Editors, gets under way.

Now in its 3rd year it is designed to increase public awareness about the public's right to know what the government is doing and why, and to highlight excessive and unwarranted government secrecy. The resources available for use by print, radio and television are fantastic, including community service advertisements featuring prominent film stars, and opinion pieces by leading authorities.

The national scope of the initiative is illustrated by this list of those who picked up on the theme last year.

This editorial (second item "Mugging the public) in today's Sydney Morning Herald might be a bit tough in saying that the state government does not want you to know the restaurants where you might pick up a stomach bug - less than satisfactory legislation to require publication of serious breaches of standards has at last been introduced into Parliament. But it is right in pointing out what appears to be a happy coincidence of opinion that the Police and hotels think we shouldn't know which pubs have the most dangerous environments, and are fighting in the Administrative Decisions Tribunal to protect this information from disclosure under the Freedom of Information Act.

And what does it say about thinking in the Police Service about accountability, transparency and the potential perception of a conflict of interest, that the senior police officer scheduled to testify in the ADT proceedings about why disclosure shouldn't occur, has resigned from the service to take up this week the position of Director of Policing and Regulatory Relations with the Australian Hotels Association, apparently responsible for liaison between the hotel industry and the Police Service? Sheesh!

Then of course there is the clear difference of opinion between the NSW Bureau of Crime Statistics and Research which has released information about incidents 'in pubs', and the Police who refuse access to information about incidents 'near pubs'.

Tuesday, March 11, 2008

ABC Sydney radio 702 Wednesday morning (9.15 AEST) will feature Kelvin Bissett, Investigations Editor of the Daily Telegraph and me as guests of Deborah Cameron for a discussion of the weird and wonderful world of freedom of information.

Andrew Leigh of the Australian National University, writing in today's Australian Financial Review, puts the case about why the publication of hospital (and doctor) performance information would act as a spur to improve, enable the public to make better choices, and would be likely to benefit the poor more than the rich:

"Under the current regime (performance) information is restricted to doctors, nurses and hospital administrators, who naturally share it with their friends. Publishing statistical data on hospital performance would democratise access to information, allowing everyone to see what the insiders already know".

As Leigh says, the same principle underpins the case for publication of information about school performance, and more broadly other tax payer funded services:

"When insiders claim the public can't handle the truth, we should respond that tax payers have a right to receive feedback on the services we fund. The more we can learn from the best the better our public services can become".

Monday, March 10, 2008

Matthew Moore wants us to pass the hat around to shout NSW Premier Morris Iemma a ticket to Queensland where he could have a look at the extensive changes under consideration to the Freedom of Information regime by the Solomon Review.

I'd think we'd be better off chartering an aircraft and doing a pick up around the country, as the issues flagged in the discussion paper seem likely to result in a total rewrite of legislation that has been the model just about everywhere. A 21st century version is what is required.

But Queensland also comes in for a special mention in this article in the Courier Mail by Madonna King who says that the public is usually denied access to the policy thinking of some of our brightest public servants whose advice is only ever seen by ministers. King says that these thinkers "are silenced by a government system that focuses entirely on the Government, to the exclusion of those who work for it".

Some rarely raised issues emerged in these recent Freedom of Information cases around the country:

Case 1. When access is sought to information about a dead person, some FOI acts require consultation prior to disclosure with the nearest or closest relative. This decision by the Acting Information Commissioner in Western Australia was that where there were five siblings with an interest in personal information held about their deceased mother, the eldest was the person who should be given this status. He rejected a submission that the quality of the relationship between the deceased person and the relative should be considered as "too vague and subjective to be of real assistance in achieving the objects of the FOI Act".

Case 2. Still in the West - this decision by the Acting Information Commissioner, based on a Supreme Court decision, singles out that jurisdiction as the only one in Australia where the review body does not have power to consider whether legal professional privilege has been waived by some action by a government agency. Elsewhere an important element in consideration of this exemption, is whether the privilege claim has been lost as a result of action inconsistent with the claim of confidentiality.

Case 3. All our FOI acts contain a requirement for an agency to publish certain information and to make it available without the need for an application under the act. It requires usually the publication of documents used to make decisions that impact on members of the public. Centrelink hadn't interpreted this obligation to cover its internal Freedom of Information manual. Justice Finn of the Federal Court said that such a document came within the scope of the publication requirement in the Federal Act but dismissed an action in which the applicant sought a statement of reasons about why this was so, as Centrelink had already released the document.

Case 4. An officer of the Australian Taxation Office who is a defendant in civil proceedings for malicious prosecution or misfeasance in public office, sought access to documents about the matter under the Federal FOI Act, but was refused access largely on the grounds that disclosure of information to him would be an offense under Section 16 of the Income Tax Assessment Act. However the Act includes the provision that permits disclosure "in the performance of (a) person's duties as an officer". The Tribunal decided that these words should be widely interpreted. The secrecy provision would normally apply to documents requested but disclosure to the applicant, who was performing his duty as an officer in defending the proceedings in the Supreme Court, came within the exception in the Tax Act. (Paragraph 30).

Case 5. Two years after an application, and 18 months after proceedings commenced in the Administrative Appeals Tribunal, the Australian Taxation Office succeeded in an application to the Tribunal to have the matter remitted so that it could have another crack at getting the decision right. The applicant sought access to documents concerning income tax liability over a period of 10 years, and the Tribunal refers to many similar applications from persons under investigation in connection with offshore tax schemes (Project Wickenby). The Taxation Office had not undertaken search for documents on the basis that all were likely to be exempt. Further delay is now inevitable, but here is the Tribunal's comment: "Much was made by the applicants of the amount of time that has elapsed since the original applications and the time and effort that the applicants have expended on the applications and review process. While a degree of impatience and exasperation might be understandable, any past wasted effort involved can no longer be recouped. The relevant question is what course of action will involve the most efficient disposition of the issues at the least cost in the future". When this matter is finally resolved, the applicants are likely to find that the cost rules in the AAT are so restrictive that they are very unlikely to qualify for a recommendation that the Government pay their costs, despite the fact that all this has been no fault of theirs.

Friday, March 07, 2008

A number of newspaper reports and other freedom of information developments over the last week or so illustrate, in some instances ,that the law and the way it is applied is to avoid disclosure or give the applicant the run around. You can only wonder at the cost to the public purse, and to the damage to credibility of the organisations or governments involved.

The 18 month long saga of the Sydney Morning Herald attempt to access surveys of public opinion about the Federal Government's Workchoices advertisements, finally ends in success. Read the secret research and you can understand why the Government didn't want us to know that it wasn't going down well at the time. The rest is history.

In comparison, the 4 month delay and $1000 in charges that the Herald Sun encountered in seeking access to information about mistreatment of children in Victoria's child care centres was a breeze, except that the identities of the centres couldn't be disclosed because it would "breach confidence".

Now that you mention "breach of confidence" that's why the NSW Department of State and Regional Development refused access to documents that would show how the government calculated the estimate of $150million in economic benefits that it publicly claimed would flow from 'World Youth Day' in Sydney later this year. Really!

Then there is this evidence in the trial of the former Deputy Premier of Tasmania, Bryan Green, charged with interfering with an executive officer of the government who, according to a senior public servant "went ballistic" when advice was given about the dangers of a special arrangement with a friend in an email, because it might be obtained through freedom of information.

And finally, Michael McGuirk for years has been seeking access to legal advice given in 2002 to the University of NSW by Bret Walker SC in regard to the rights and legal obligations of members of the Universty Council. The matter started in the Administrative Decisions Tribunal in 2005, went to the Appeal Panel, then the Supreme Court, then back to the Appeal Panel which handed down a decision this week. It decided that despite the fact that the document was subject to legal professional privilege it should be released. The reasons (paragraph 34): the advice is now 5 years old, does not relate to a current issue or dispute, the applicant already has obtained extracts from an unknown source, and the University had been prepared to waive privilege and provide the document in an unsuccessful attempt to settle another matter with the applicant. Hardly sounds like anything much at all, but you have to wonder about the vigorous efforts over 3 years to argue why it shouldn't be disclosed. In a separate but related decision, the ADT also decided that those parts of the minutes of a council meeting which included a summary of the advice, should be released to the applicant.

There are a number of noteworthy aspects of a recent Freedom of Information decision by Deputy President Forgie of the Administrative Appeals Tribunal in McKinnon and Department of Families, Housing, Community Services and Indigenous Affairs (2008) AATA 161.

There is the canceled contract with a university because of its alleged failure to comply with the terms of a tender; important information about indigenous health, one of the hot topics of our times; a long list of assertions about the dire consequences of disclosure of the documents. Then there is the matter that it took over a year from the time of the hearing in the AAT in February 2007, until the decision was handed down on 28 February 2008 - another example of how the review process does not work satisfactorily. A document has been released in this case close to two years after it was requested.

To cut to the chase, Deputy President Forgie decided that a report prepared by Edith Cowan University for the Department on issues associated indigenous child care should be released to the applicant. This is a relatively rare case where the Tribunal has decided that the public interest in disclosure is sufficiently strong to justify release of the documents. She decided that the public interest in having an informed debate on such an important matters outweighed other the need for government to develop its policies outside the range of public view (paragraph 138). Deputy President Forgie also rejected claims that release of the document would cause damage to relations between the Commonwealth and any of the states and that disclosure could be expected to have a substantial adverse effect on the management of personnel.

Deputy President Forgie's judgment and the detailed analysis of exemption provisions is a legal textbook on the authorities and will be of particular interest for those who wrestle with issues associated with the public interest (starting at paragraph 52). Her word by word dissection of the internal working document provision (from paragraph 71), illustrates the complexity of the words used, and the weight to be given to the various authorities about what they mean. Perhaps the most important observation is her interpretation of the High Court's decision in McKinnon v Treasury as requiring the exemption provisions to be applied to protect only "essential public interests" (paragraph 124).

Tuesday, March 04, 2008

If you are within earshot of Sydney radio tomorrow (5th March), tune into 702 on the AM dial at around 9.15am (AEST) to hear a discussion between the host Deborah Cameron and two of Australia's leading FOI journalists, Michael McKinnon of Channel 7 and Matthew Moore of the Sydney Morning Herald.

With all the fuss about Prozac and the failure of manufacturers to publish all the results of tests, it seems we have a bit of soul searching to do about government attempts to keep us in the dark about some aspects of health research.

A brief item on ABC Radio's PM last Friday about the suppression of public health information by Australian governments referred to results of a survey of public health researchers undertaken by two academics from the School of Population Health from the University of Western Australia. Over 300 researchers had responded to a questionnaire about whether their research over the five years to mid 2006, had encountered a "suppression event" - where potentially embarrassing or controversial health information of legitimate public interest to be researched or published was prevented, obstructed, defunded or sanitized by an Australian government agency.

One hundred and forty two suppression events were reported in responses. Most concerned attempts to suppress research about the delivery of health services, population health status, environmental exposure of health administration. The reason in most cases was to attempt to protect government, health industry and provider group interests.

The academics who conducted the survey concluded as follows, and this is enough to make us all sit up and pay attention:

"The suppression of health information as practised by Australian governments represents very poor government practice in its milder forms and official corruption in more extreme cases. It is certainly unbecoming of a nation that prides itself on being enlightened, democratic society where the government is held accountable for protecting and improving the lives of the people".

Should we all be reassured by the head of the National Health and Medical Research Council who told PM on Friday that the matter will be discussed at a meeting in May?

The Federal and state ministers of health agree on some disclosure of unspecified information about how hospitals and doctors perform, as outlined in this article in Saturday's Sydney Morning Herald. Without much fanfare, the Queensland Department of Health is already posting on its website detailed comparative performance data on hospitals.

The NSW Ombudsman is bewildered by secrecy at RailCorp after investigating complaints about its refusal to release documents to the SMH concerning safety, first sought three years ago saying it may indicate more systemic failure to properly deal with applications by journalists.

The Tasmanian Minister for Education has promised more detailed performance assessment information on public schools, after a Freedom of Information application for this type of information was rejected.

The Solomon Review of the Queensland Freedom of Information Act will co host with the Australian Law Reform Commission a half day seminar on its Discussion Paper next Thursday from 1.30pm in Brisbane. Details are in this flyer. Michael McKinnon FOI Editor Channel 7 plans to tell what the Review should recommend, and Rick Snell of the University of Tasmania should have just about caught his breath after returning from the Carter Conference in Atlanta, will lead a broader discussion.

The Discussion Paper raises big picture issues about access to information policy and the law that underpins it in Queensland: it seeks to challenge "core legislative presumptions and current paradigms in the administration of FOI to shake out what matters most and what resonates best in the problem-solving puzzle". Big thinkers about fundamental "clean page" reform will be encouraged by the range of issues on the Review agenda and outlined in Chapter 8 of the Discussion Paper.

Good on the PM for taking the lead in telling us about the first 100 days of the Rudd Government. The report card includes a number of references to transparency and accountability issues including community cabinet meetings; a start on campaign finance reform through the introduction of legislation to remove tax deductibility for campaign donations; more open process for Reserve Bank appointments, release of Bank Board minutes and statements of reasons for decisions; statement of principles for the foreign investment screening process; and of course the proposed 2020 summit.

This editorial in the Sydney Morning Herald provides an objective but still positive assessment.

Also in the context of the first 100 days, The Australian today has an article about the quiet behind the scenes work of Minister of State John Faulkner initially focusing on the need to clean out "the Augean stables left at the very heart of the machinery of government by John Howard". According to Glen Milne, Faulkner believes they are "filthy" and amount to an attempt to corrupt the system, and "a very real threat to the democracy itself". The Minister sees the need for change, including Freedom of Information reform and quickly, and thinks that "sunlight is the best disinfectant".

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About Me

Peter Timmins is an Australian lawyer and consultant who works on FOI and privacy protection issues in Sydney, NSW. He has Arts and Laws (Honours) degrees
from the University of Sydney, and has been involved in the FOI field for 25 years.Peter is an experienced public speaker and commentator. See In the News and Testimonials, and Career Summary for more details on background and experience.